By Ronald M. Sandgrund, Esq., InQ.

InQ:How old were you when you first felt that practicing law was what you wanted do for a career?

Tony: I was 20 years old.

InQ: How old were you when you started practicing law full-time?

Tony: I started practicing law full-time at 24, and I practiced full-time for roughly seven years. I did legal work as part of my job for another twenty-five years.

InQ: When did you first start thinking about exiting the full-time practice of law?

Tony: I began having second thoughts about full-time private practice when I was 26 or 27. I really didn’t enjoy being a hired gun and felt like I was spending way too much time sitting behind a desk. I was in private practice for only a couple of years before I decided I’d rather go count elk or caribou in the woods.

InQ: Did you develop any sort of plan at that point—whether to count elk, caribou, or some other critters?

Tony: I realized that my law degree and undergraduate degree in English literature were not going to be particularly helpful if I wanted to pursue a new career in wildlife management. I decided to go back to the University of Colorado and get a master’s degree in biology. I thought I could get the degree in eighteen months. It ended up taking closer to two years.

InQ: Did any obstacles to your plan crop up?

Tony: My wife, who was working full-time, was pregnant with our first child. Money was a little tight and I took a couple of part-time clerking jobs. As a former practitioner, it was relatively easy to find part-time work. To stay within a two-year time frame, I earned a master’s of basic science, which was a less prestigious and less useful degree than a master’s in wildlife biology.

InQ: What strategies did you employ to manage these obstacles?

Tony: I was very, very nice to my wife.

InQ: Always a good strategy. At any point did you think about reversing course?

Tony: I didn’t have any second thoughts about returning to school. I thoroughly enjoyed the course work and appreciated the learning experience in a way I hadn’t in law school or as an undergraduate. Although I didn’t reverse course, I did alter it. When I graduated with the MBS, I found that while I was qualified for entry-level positions in wildlife management, many potential employers were interested in me primarily because I was a lawyer with a science degree. I also realized, belatedly, that law school and private practice had ruined me as a scientist. I wasn’t going to be satisfied simply collecting data; I wanted to apply the information in some way. Apparently, once an advocate, always an advocate. Eventually, I accepted a position as legal counsel for National Wildlife Federation’s Prairie Wetlands Resource Center in Bismarck, North Dakota. This was the beginning of a wonderful twenty-six years in the nonprofit world.

So, I didn’t reverse course, but I did make a few course corrections. After transferring to National Wildlife Federation’s Alaska office, I became the regional director in 1997. After eleven years with the organization, I was ready for a change, and the director position involved different responsibilities. Seven years later, I arranged to swap jobs with one of our staff attorneys. As senior attorney, I was able to work on specific projects and reduce my hours.

InQ: Did you eventually leave the practice of law completely?

Tony: I went part-time in 2013 and retired earlier this year.

InQ: Some say that the biggest hurdles to changing one’s career path are a lack of imagination, fear, and finances—what do you think?

Tony: I’ve never had any problem filling my time or imagining life without a full-time job. After working most of my career at a nonprofit, I also know that there are many good organizations looking for volunteers. Money was a factor in the timing of my retirement. I waited until I thought my wife and I could maintain our current lifestyle and tried not to let “what ifs” affect my judgment too much.

InQ: How much did finances affect your decision to retire?

Tony: I wouldn’t have considered retirement before paying for my children’s college education. It’s probably a little too soon to tell if our financial analysis was correct—we haven’t run out of money yet!

InQ: How did your significant other react when you were exploring options other than the full-time practice of law? Did any tensions arise within your family?

Tony: My wife was very supportive—except when I suggested I could get a really good job if I went back to school for a doctorate! Ultimately, my wife had veto authority over many of the more significant career choices I made, but fortunately she never exercised it. I didn’t really experience any tensions, and I was fortunate in being able to phase out of full-time active practice. It was really a pretty easy transition.

InQ: You are only 56. How are you filling your new-found time?

Tony: I have a lot of interests that are now limited only by the threat of repetitive stress injuries. So far, I haven’t felt the need to find new hobbies to fill the time. At some point, I plan on doing something more productive, but right now I’m just relaxing and enjoying life.

InQ: What does your wife think of you playing all the time while she is still working? Has your share of the domestic chores increased?

Tony: She thinks I’m working from home. Just kidding. My wife retires in November. In the meantime, I’m doing most of the household chores and trying not to look like I’m enjoying myself too much.

InQ:

Tony: I wouldn’t do anything differently.

InQ: How happy were you when practicing law full-time and how happy are you now?

Tony: For most of my career, I was very happy. The last few years, I was ready for something new. I’m very happy now. Change is good.

The Colorado Court of Appeals issued its opinion in People v. Omwanda on Thursday, September 25, 2014.

Evidence Suppression of Information on Cell Phone—Theory of Defense Instruction.

Before trial, defendant sought to suppress evidence that police had recovered from his cell phone. At the suppression hearing, an officer testified that he stopped a car carrying six people, including defendant. With the driver’s permission, the officer searched inside the car, where he found electronic scales and a pill bottle containing cocaine. Two passengers said the pill bottle belonged to defendant.

The officer arrested and searched defendant. The search revealed another pill bottle and a cell phone. The second pill bottle contained a white residue. Defendant asked the officer to give the cell phone to another passenger, but the officer told him he would keep it as evidence. The officer read three text messages on the phone. All three indicated cocaine use and purchase.

The officer later applied for, and received, a warrant to search the phone. The warrant application quoted the text messages. The search of the phone pursuant to the warrant revealed additional communications and information indicative of drug dealing.

The trial court denied the motion to suppress because the search was incident to the arrest. The jury acquitted defendant of possession with intent to distribute but convicted him of possession of a controlled substance.

The Court of Appeals agreed with defendant that the initial search of the phone violated the Fourth Amendment as enunciated by the U.S. Supreme Court in Riley v. California, Riley v. California, ___ U.S. ___, 134 S.Ct. 2473 (2014). In Riley, the Court held “that a warrant is generally required before . . . a search [of information on a cell phone], even when a cell phone is seized incident to arrest.”

The People argued that even if the initial search was unlawful, the police independently discovered the information on the phone pursuant to the search warrant. A court may admit unconstitutionally obtained evidence “if the prosecution can establish that it was also discovered by means independent of the illegality.” The Court reviewed the officer’s warrant application and found probable cause to support the issuance of the warrant. The issue turns on whether the initial search of the three text messages affected the officer’s decision to seek the warrant. This required further factual findings. Accordingly, the case was remanded for further proceedings on this issue.

Paula and Richard Gagne, mother and son, are the sole members of the four limited liability companies (LLCs), each of which owns multi-unit apartment complexes. Richard initiated this action, alleging that he and Paula had been unable to agree on the continued operation and management of the LLCs and had reached an impasse as to an equitable distribution of the LLCs or their assets. Richard requested judicial dissolution of the LLCs, a declaratory judgment regarding their respective rights, and the appointment of a receiver. The district court issued a declaratory judgment, granted partial summary judgment to Paula on Richard’s judicial dissolution claim, denied Richard’s request to require Paula to disgorge the attorney fees that the LLCs paid on her behalf, and denied Richard’s requests for attorney fees.

On appeal, Richard contended that the district court erred in granting partial summary judgment to Paula on his claim for judicial dissolution. The Court of Appeals was unable to determine, as a matter of law, whether the LLC Agreements provide an effective means for resolving the disagreements between Paula and Richard. Because there were genuine issues of material fact precluding the entry of partial summary judgment on Richard’s judicial dissolution claim, the partial summary judgment on that claim was reversed.

Paula and Richard both asserted that the district court erred in its resolution of the parties’ declaratory judgment claims regarding the management of the properties. Because the LLC Agreements are ambiguous regarding these issues, the case was remanded for further findings regarding the parties’ intent.

Paula contended that the district court erred in entering a declaratory judgment regarding (and imposing remedies for her conduct as to) an employment contract she entered into with another son, Jay Gagne, and a loan she made to one of the LLCs in which Paula signed the paperwork as both lender and borrower. Because Richard never asserted any such claims for relief, and because the parties have not argued (and the record does not show) that such claims were tried by implied consent, Paula did not have proper notice of these claims and the court erred in entering a declaratory judgment on these claims.

Richard also contended that the district court erred in denying his motion to disgorge the attorney fees that the LLCs paid on Paula’s behalf in this case. Richard’s action represented an attempt to “undo” the LLCs and distribute their assets, and Paula, acting as Chief Executive Manager of the LLCs, defended against Richard’s efforts to do so. In these circumstances, Paula’s using of LLC funds to defend against Richard’s claims was not improper.

Richard further contended that the district court erred in denying his requests for attorney fees based on the dismissal of Paula’s counterclaims. However, Richard failed to establish that he is entitled to recover fees pursuant to CRS §13-17-201 on the facts of this case. The judgment was affirmed in part, reversed in part, and vacated in part, and the case was remanded with directions.

Defendant, a Mexican citizen, pleaded guilty to the use of a schedule II controlled substance. He received a deferred judgment for one year on the condition that he successfully complete drug and alcohol treatment. After he completed the treatment, the district court permitted him to withdraw the plea, and the court dismissed the case with prejudice. Defendant thereafter sought permanent residency in the United States, which was denied because a withdrawn plea in a Colorado state court constitutes “conviction” of a felony under federal immigration law. Defendant filed a post-conviction motion seeking to withdraw his plea pursuant to Crim.P. 35(c) and Crim.P. 32(d) based on ineffective assistance of counsel, which was denied.

On appeal, defendant contended that the district court erred in summarily denying his Crim.P. 35(c) motion. However, a deferred judgment is not reviewable under Crim.P. 35(c) unless it is revoked and a judgment is entered.

Defendant further contended that the district court abused its discretion in failing to consider his Crim.P. 32(d) motion to withdraw his guilty plea, and requested that the case be remanded for that purpose. Because defendant had already successfully completed his deferred judgment, the district court did not have jurisdiction to rule on defendant’s motion. The appeal challenging the order denying relief was dismissed and the order denying relief was affirmed.

The Colorado Court of Appeals issued its opinion in People v. Valdez on Thursday, September 25, 2014.

Aggravated Driving After Revocation Prohibited—Driving Under the Influence—Merger.

A witness driving in Pueblo observed a vehicle parked along the curb at an intersection. Concerned, he stopped and discovered Valdez passed out and unresponsive in the driver’s seat. He contacted law enforcement officials, who observed Valdez in a stupor with a twenty-four-ounce can of beer between his legs, and his feet near the gas and brake pedals. They also found his keys in the ignition. When they arrested Valdez, he slurred his speech and drifted in and out of consciousness. At one point, he attempted to start the vehicle, but the officers restrained him. They eventually removed him from the vehicle. At the time of the arrest, Valdez’s driver’s license had been revoked because he was a habitual traffic offender. He was convicted of aggravated driving after revocation prohibited (ADARP) and driving under the influence (DUI).

On appeal, Valdez contended that the trial court erred in denying his motions for judgment of acquittal on both charges because the prosecution failed to prove beyond a reasonable doubt that he “operated” or “drove” an “operable” motor vehicle. The term “drive” means to exercise “actual physical control” over a motor vehicle. Further, the prosecution was not required to prove the operability of the vehicle beyond a reasonable doubt. Here, although the vehicle may have been inoperable at the time the police arrived, there was sufficient evidence that Valdez drove the vehicle to the intersection before he passed out, and his action of attempting to start the vehicle when the police arrived further proved that he had physical control of the vehicle. Accordingly, the trial court did not err in denying Valdez’s motions for a judgment of acquittal, nor was it required to provide an instruction to the jury to determine, beyond a reasonable doubt, the operability of the vehicle at issue.

Valdez also argued that the trial court erred by not merging his ADARP and DUI convictions because DUI is a lesser included offense of ADARP. The law is presently unsettled on this issue. Therefore, the trial court did not commit plain error in upholding the jury’s separate convictions for Valdez’s DUI and ADARP offenses, and for imposing separate sentences for those crimes. The judgment was affirmed.

M.B., the 12-year-old daughter of defendant’s girlfriend, C.H., was declared brain dead and taken off life support after defendant physically abused her, causing her fatal injuries. A jury convicted defendant of (1) first-degree murder—victim under the age of 12, position of trust; (2) child abuse causing death; (3) child abuse causing death—pattern of conduct; (4) two counts of child abuse causing serious bodily injury; and (5) child abuse causing serious bodily injury—pattern of conduct.

On appeal, defendant contended that the trial court erred in holding that he did not have standing to assert a challenge under Batson v. Kentucky, 476 U.S. 79 (1986). Defendant made a Batson challenge when the prosecutor used a peremptory challenge to excuse Juror H, an African American. The prosecutor asserted that defendant could not make a Batson challenge because he was not African American. The trial court agreed and concluded that the challenged juror and defendant had to be of the same race. A defendant does not have to be of the same race or cognizable group as that of an excused juror to make a Batson challenge. However, the prosecution provided race-neutral grounds for excusing Juror H, and defendant did not establish purposeful discrimination. Therefore, the court did not err.

Defendant contended that the trial court should have granted his challenges for cause to two prospective jurors, Juror C and Juror W, who were later removed by peremptory challenges. Because defendant failed to demonstrate that a biased juror actually sat on the jury, the court did not err.

Defendant also contended that the trial court erred in admitting the testimony of three expert witnesses regarding injuries consistent with non-accidental trauma, as well as Detective Thrumston’s testimony recounting M.B.’s removal from life support. The Court of Appeals ruled that the trial court did not abuse its discretion nor err in admitting the testimony.

Defendant further argued that the court erred in failing to merge his convictions. Defendant is correct that the four child abuse counts must merge into one conviction because they are alternative ways of committing the offense of child abuse. The child abuse convictions, however, should not have merged into the first-degree murder conviction, because each offense contains an element not included in the other. The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

The Colorado Court of Appeals issued its opinion in People v. Merritton Thursday, September 25, 2014.

Confrontation Clause—Autopsy Report—Testimonial.

A hotel desk clerk found Welch’s body in the room where she had lived for about five years. Her throat had been cut and a large amount of blood was visible on her body and on the bed beneath her. Defendant, a security guard at the hotel, was charged with her death. He was found guilty of second-degree murder and was sentenced to thirty-six years in the custody of the Department of Corrections.

On appeal, defendant alleged that the court violated his rights under the Confrontation Clause by admitting an autopsy report prepared by a doctor who was not present at trial. Dr. Lear-Kaul performed an autopsy and authored a report detailing her findings and conclusions regarding the cause and manner of Welch’s death. Because Dr. Lear-Kaul was on maternity leave during the trial, her supervisor, Dr. Dobersen, testified regarding the autopsy report and the cause of death.

Given the state of the body, the nature of the crime scene, and the statutorily mandated cooperation between the coroner’s office and the district attorney’s office, it was reasonable for Dr. Lear-Kaul to assume that the report containing her findings and conclusions would be used in the eventual prosecution of a murder suspect. Therefore, the statements were testimonial. However, by asking Dr. Dobersen questions about alternative causes of death, which relied on facts contained in the autopsy report, defendant’s counsel intentionally opened the door on a particular line of questioning and effectively waived the right to confrontation. The judgment was affirmed.

The Tenth Circuit Court of Appeals issued its opinion in United States v. Melot on Friday, September 26, 2014.

Katherine Melot (plaintiff) and her husband Billy owe the government millions of dollars in federal taxes, and Billy is serving a prison sentence for tax crimes. The tax debt led the government to foreclose on the Melots’ properties. The Melots tried to stop the foreclosures using fraudulent methods — namely, by asserting liens on the property in the name of Stephen Byers, an incarcerated and destitute person. The liens and Byers’ motion to intervene in the foreclosure proceedings were signed by Mrs. Melot and they were mailed from the address of a friend of the Melots. The government suspected fraud and, at the hearing on the motion to intervene, presented evidence tending to show the scheme between Melot and Byers.

At the hearing, Mrs. Melot’s counsel requested notice prior to the imposition of any sanctions, and the magistrate noted that the Melots would be noticed on any hearing regarding the contempt. The magistrate certified criminal contempt by the Melots. More than a year later, the district court issued an order addressing the contempt certifications, and, recognizing the costs of prosecuting a criminal contempt matter, declined to order contempt, instead imposing the following sanctions: (1) removal of Mrs. Melot and her children from the property; (2) reimbursement of the government’s costs for the hearing; (3) striking the Melots’ pending motions, responses to motions, and requests for stays; and (4) imposing filing restrictions.

Mrs. Melot appealed the sanctions, arguing the district court violated the Fifth Amendment’s Due Process clause by imposing sanctions without giving the Melots notice and an opportunity to be heard. The Tenth Circuit agreed. Sanctions cannot be imposed without notice that sanctions are being considered by the court and a subsequent opportunity for the defending party to be heard. Although the magistrate had provided notice of the possibility of criminal contempt, there was no notice of the imposition of sanctions. The Tenth Circuit reversed the district court’s sanction order and remanded for further proceedings, noting that the district court was not barred from re-imposing sanctions after proper notice and hearing.

The Colorado Supreme Court is seeking comments regarding proposed changes to the Colorado Rules of Judicial Discipline. The public comment period is now open, and will close at 4 p.m. on October 14, 2014. Comments should be submitted to Christopher Ryan, the clerk of the supreme court, at 2 E. 14th Ave., Denver, 80203.

The changes to the Rules are extensive. Several rules have been moved or deleted, including the rules on confidentiality, screening of complaints, investigation, discovery, and special masters. For a redline of the changes, click here.

For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

On Wednesday, September 24, 2014, the Colorado Supreme Court issued Rule Change 2014(12), adding new Rule 49.5, “Electronic Filing and Service System,” to the Colorado Rules of Criminal Procedure. The new rule is effective immediately.

The rule provides that e-filing and e-service may be used for criminal cases in Colorado as determined by the Colorado Supreme Court through Chief Justice Directives. The rule was added in anticipation of the criminal e-filing pilot program in Pueblo, scheduled to begin in October.

For the complete text of the new rule, click here. For all the Colorado Supreme Court’s rule changes, click here.

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We are told fact sections should tell a story, as if such advice is self-executing. No one explains how to tell a story. Yes, we tell stories everyday. But when we do, they come out naturally and may not be very good. Writing a fact section is not natural and needs to be good.